Noel Redding Estate Ltd & Anor v Sony Music Entertainment UK Limited

Permission to appeal should be refused where the proposed grounds have no real prospect of overturning the decision. Fact-sensitive issues concerning the scope of original consent and technological change may require trial, particularly where the defence and relevant facts remain undeveloped. A copyright claim is not necessarily characterised as a claim to partnership assets merely because the pleadings refer to a partnership. On costs, the court identifies the overall winner and may make a proportionate deduction for claims abandoned or struck out.

Sony sought permission to appeal from the judge’s earlier judgment, [2024] EWHC 128 (Ch), which had allowed claims concerning performers’ property rights and copyright to proceed to trial while striking out or removing lesser claims. The proposed appeal concerned whether transitional provisions necessarily precluded the performers’ property-rights claims because exploitation was in pursuance of original consents, and whether the copyright claim was necessarily a claim to partnership assets and therefore time-barred following dissolution.

The court also determined the costs of the permission application.

1. Permission to appeal refused. Both grounds had no real prospect of showing an error of law or a perverse conclusion.
2. As to performers’ property rights, Sony had not pleaded its defence, and the claimants had not yet had the opportunity to identify facts qualifying the original consents. The pleaded oral agreement concerning royalty division also required clarification. The issue was unsuitable for summary determination. The court distinguished Barrett v Universal-Island Records Ltd, [2006] EMLR 567, because the change from straight vinyl recordings to modern digital formats was arguably more fundamental than the change from video to DVD. Bassey v Icon Entertainment plc, [1995] EMLR 596, also illustrated that the scope of consent could involve a factual issue.
3. As to copyright, Sony’s argument depended on treating the copyright as a partnership asset and applying Marshall v Bullock. Dissolution was not pleaded or relied upon, and the pleadings separately asserted joint first ownership. The partnership reference did not compel Sony’s proposed characterisation. The argument could be made at trial, but did not justify strike out or permission to appeal.
4. For costs, the claimants were the overall winners because the principal attack on the copyright and performers’ property-rights claims failed. Applying the general principles in Civil Procedure Rules 1998, CPR 44.2, the court awarded the claimants 75% of their costs. Sony was ordered to make an interim payment equal to 45% of the costs claimed.

High Court (Intellectual Property List): Sony’s application for permission to appeal from the judgment dated 29 January 2024, [2024] EWHC 128 (Ch), was refused.